2016-06-13_GENERAL DOCUMENTS - C1981035

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proposal, even if approved, would change the annual depletion of water from the San Juan River Basin. To the contrary, the information contained in Appendix 8 of your complaint indicates that the amount of water -11 acre feet per year—diverted from its dry -up right from 2012 through 2014, is below the 13 acre feet per year that was assumed in the 2007 water court decree. Moreover, in the Fish and Wildlife Service's (Service) March 3, 2006 Biological Opinion included in the July 2006 Mining Plan Decision Document, the Service indicates that its May 21, 1999 Biological Opinion found that water depletions of 100 acre feet or less would not limit to the provision of flows identified for recovery of the Colorado pikeminnow and razorback sucker and, thus, not be likely to jeopardize the endangered fish species or result in the destruction or adverse modifications of their habitat. You did not provide any information that the mine is using more than 100 acre feet of water. Further, regarding compliance with land use laws, on June 1, 2016, La Plata County approved a Class H land -use permit for the King II coal mine. With the approval of GCC's land use permit by the La Plata County, GCC is now limited to 80 trucks per day (equivalent to between 650,000 and 700,000 tons of coal production per year) until further road improvements are made. The land use permit also requires other specific actions on the part of GCC to reduce impacts of coal mining and transportation on local residents. To the extent that future actions, such as increased production, proposed additional water storage, or other land use laws affect the mine, we want to inform you that OSMRE will be a co - lead agency with the Bureau of Land Management in developing an Environmental Assessment (EA) to support the potential renewal of the federal SMCRA permit, a new federal lease, and other future mining activities at that mine. The EA is expected to analyze these and other potential impacts related to the King II mine. We anticipate a preliminary EA will be available for public review in 2017. Finally, your complaint also alleges that OSMRE violated the federal regulations with respect to when a MLA mining plan modification is required. For the reasons discussed above, it is not the proper subject of a citizen complaint under SMCRA. However, as it relates to the operations of my office, I have reviewed the claim and determined that my staff acted appropriately. As you indicate, OSMRE Directive REG -31 states that the Regional Director decides if a permit revision requires a new mining plan. An OSMRE Directive is a "written communication that provides policy, guidance, or direction." OSMRE Directive OPM-1, Annex A. As with other guidance documents, it is not binding, and it does not create any legal obligations. See, e.g., Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014). It is simply a document that provides guidance for OSMRE staff on day-to-day operations. In this context, when REG -31 refers to the responsibilities of the Regional Director, it is referring to the responsibilities of the staff in his directorate and not the individual specifically. This is supported by the myriad of responsibilities assigned to the Regional Director across all of OSMRE's Directives, which no one individual could reasonably complete. In addition, OSMRE's Directive OPM-5, which covers delegations of authority within the agency, is silent as to the official responsible for determining the individual responsible for determining if a mining plan modification is required. Based on the preceding discussion OSMRE does not find any violation of the SMCRA in your citizen complaint regarding the increased production at the King II Mine and is not conducting a federal inspection. If you do not agree with the actions taken by this Office concerning your Page 3 of 4